1. ' This is an appeal under section 21 of Sindh Rented Premises Ordinance 1979 (hereinafter called the Rent Ordinance) directed against the judgment dated 4-4-1994 passed by V-Rent Controller, Karachi-East, in Rent Case No, 48/92 (Mst. Jannat Bi v. Abdul Jilani) whereby an application under section 15 of Rent Ordinance filed by the respondent was allowed and the appellant was directed to hand over vacant possession within 60 days.
2. ' Brief facts of the case are that the respondent/applicant filed an application under section 15 of Rent Ordinance on the grounds that (i) she required the demised premises for her bona fide need in good faith, (ii) the appellant/tenant has made addition and alteration in the demised premises without her written consent, as such, has impaired materially the value and utility of the premises and (iii) the appellant/tenant has passed on possession of demised premises to another person without her written permission. The appellant/tenant filed written-statement wherein he denied all the allegations made in the 'eviction application and stated that the requirement of respondent/applicant is not based in good faith. The learned Rent Controller after recording the evidence and hearing the counsel for the parties allowed the eviction application only on the ground that respondent/applicant required the premises for her personal bona fide need in good faith.
3. ' Learned counsel for the appellant has confined his arguments only to the finding given by the learned Rent Controller, on the personal requirement of the respondent. Learned counsel for the appellant has argued that the respondent in the eviction application has shown that there were eight shops in the building but on perusal of Commissioner's report it appeared that there were nine shops out of which two shops were lying vacant and further that during the pendency of the eviction proceedings, Shop No,5 fell vacant but it was re-let outs to one Tawnier and the said facts were suppressed by the respondent/applicant, consequently she was not entitled to the relief of eviction against the appellant. He further submitted that the respondent has produced photo-copy of Exh. P/19, an agreement, which is a family settlement arrangement between the co-owners but the same being not registered, could be considered to be evidence in view of section 17 of Registration Act considering the value of share of property of respondent/applicant in the property being more than rupees one hundred. He further argued that there being no legal partition between the co-owners therefore each co-owner will have a right/interest in every inch of the joint property hence the respondent/applicant could not say that she was only owner of two shops viz Shops Nos. 3 and 6 so far rest of shops, she was not having right, title or interest as the same belonged to other co-owners. He has further argued that Shop No,5 fell vacant but it was relent out therefore the respondent applicant cannot be said to have asked for the eviction of the appellant in good faith as the respondent could have carried out her business in Shop No,5 which fell vacant.
4. He also submitted that as per Commissioner's report two shops were lying vacant hence the respondent/applicant could carry out the business as said in the affidavit-in-evidence. He has argued that no evidence has been led to show that the Shop No,5 and other two shops lying vacant were not suitable for the respondent. He has placed reliance upon (i) A. Hai Usmani v.
5. Qamar Jehan (1987 MLD 2110), (ii) Ali Gohar Khan v. Sher Ayaz and others (1989 SCMR 130), (iii)
6. Muhammad Hussain v. Asghar Ali and 2 others (1991 MLD 732). (iv) Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi (1987 SCMR 2051), (v) Khushi Muhammad v. Mst. Mehr-un-Nisa and another (1992 SCMR 1330), (vi) Nawadat Khan v. Mst. Surraya (PLD 1993 Karachi 491), (vii) Abdul Majeed Memon v.
7. Mst. Attiya Rehman (1993 CLC 1350) and (viii) Malik Islam Akber v. Mustafa Hussain (1992 CLC 1753 in support of his submissions.
8. ' Learned counsel for the respondent has argued that vide Exh. P/19 the family arrangement respondent was given Shops Nos.3 and 6 only and the shop No,5 which is said to have fallen vacant did not belong to her and further said family arrangement would not require registration under the law hence it could be used in support of the occular testimony. He further submitted that the respondent has proved her requirement in good faith for running a Karyana shop in the disputed shop premises by her husband and her son Zafar Ahmad and the said need of the respondent has been corroborated by her attorney Muhammad Salihin, her brother Muhammad Yousuf and her son Zafar Ahmad who were cross-examined at length but their testimony could not be shaken. He further submitted that the respondent being landlady has prerogative right to have a possession of any shop which she considered suitable for running the business. He has placed reliance upon (i) M/S. F.K. Irani & Co. v. Begum Feroze (1996 SCMR 1178), (ii) Wasim Ahmad Adenwalla v. Shaikh Karim Riaz (1996 SCMR 1055), (iii) Murad Baig, Etc. v. Ghulab Khan (1992 ALD 31),
(iv) S.M. Zafar v. Vice Admiral (Retd.) Iqbal F. Qadir 1991 CLC 1137 (v) Agaria Amir Ali v. Abdul Majid (1993 SCMR 67), (vi) Mrs. Zehra Begum v. M/s. Pakistan. Burmah Shell Limited (1992 SCMR 943) and
(vii) Khawaja Imran Ahmad v. Noor Ahmad and another (1992 SCMR 1152) in support of his contention.
9. ' The main contention of learned counsel for the appellant is that the agreement Exh. P/19 which is a family settlement being not registered cannot be considered as a .Part of evidence, therefore the respondent/applicant could not be said to be only owner of Shops Nos.3 and 6, consequently Shop No,5 which fell vacant during the pendency of ejectment proceedings was relet out and the fact that two shops as per report of the Commissioner were lying vacant which could have been put to use by the respondent/landlady would adversely affect the bona fide requirement of the respondent. So far the other evidence adduced by the respondent/landlady the same has not been challenged. I do not find substance in the contention of learned counsel for the appellant that the respondent/landlady has failed to prove her requirement in good faith in respect of disputed shop in possession of the appellant.
10. ' The respondent/applicant in the eviction application has stated about her requirement in good faith and her attorney Muhammad Salihin has reiterated the personal requirement and the same is corroborated by her brother Muhammad Yousuf and her son Zafar Ahmad. Testimony of respondent's witnesses could not be shaken in the cross-examination so far the personal requirement of respondent/applicant is concerned for running the business in the shop in possession of the appellant. So far the non-registration of Exh.P/19 it is a kind of family arrangement between the co-sharers whereby two Shops Nos.3 and 6 have been allotted to the respondent and thereby the said agreement has not created any interest in the property hence it required no registration. This family arrangement appears to have been made by co-owners so that each of the co-owner could use the portions allotted to their personal use in any manner in which they would like to put it. Exh.P/19 is no more than a memorandum of arrangement agreed to by the co- owners so as to enable the each of the owner to use respective allotted share and it could not be said official partition of the property conveying the title over the portion allotted to each of the co- sharer. Exh. P/19 is a family settlement which does not convey any title of the property from one party to another but it only embodies the agreement between the co-sharers in which share of the each co-owner is acknowledged and recognized which could not be regarded as either transfer of property or even a contract to transfer of immovable property.
11. ' In the circumstances it could conveniently be said that the respondent landlady having been allotted two Shops Nos. 3 and 6 could only claim right to is the same for herself in respect of the said shop. The respondent cannot claim the right to use or enjoyment of Shop No,5 or two other shops of the same building which have been allotted to other co-sharer in the building jointly owned by co-sharers. The shop in dispute allotted to the respondent/applicant being in occupation of the appellant as tenant could be asked by respondent/landlady for her requirement in good faith which has been proved honestly. No other shop allotted to her was vacant therefore her request for getting the possession of the shop in dispute in possession of the appellant could be sought by her. In the circumstances there could not be question of any suitability of the shop in question as there being no other shop available to the respondent landlady for which she could say that the said shop was not suitable. .The only shop for which the respondent has asked for being in possession of the appellant for which the respondent has proved her requirement in good faith would be entitled to seek eviction. The contention of the learned counsel for the appellant has no substance and merit. The order passed by the learned Rent Controller is legal and proper hence called for no interference consequently the appeal is dismissed. The facts of cited cases by the learned counsel for the appellant are quite different and distinguishable to the facts of the instant case. However, the appellant is given sixty (60) days period to vacate the premises.